Book review: Allegiance — to rules or justice?

Posted Tue, September 29th, 2015 11:36 am by Lisa McElroy

“The Court is a place of great responsibility. It is a temple of truth. We who work here must dedicate ourselves to worship and service . . . . [I]f you have come here for any other purpose, you will be disappointed.”

When Kermit Roosevelt’s new novel, Allegiance, begins in December 1941, the Japanese have just bombed Pearl Harbor. Cash Harrison, the protagonist, is disappointed to fail the draft physical – his feet, it would seem, are not sturdy enough to take him through the long marches required in war. Now he cannot serve his country during World War II, or so he thinks. As it turns out, he is called to a different kind of service – as a clerk at the United States Supreme Court.

Cash starts out questioning, even demonstrating that becoming a law clerk is a paltry role compared to that of a soldier fighting on the front lines (“As I knock . . . [on the front doors of the Supreme Court] the insignificance of my fist against the metal tells me I’ve been had.”). But, early on, he realizes that clerks may indeed make a profound difference (“[T]he job is little like my expectations, less like my dreams. The boredom [is] leavened only by the knowledge that with any one of these [cert.] petitions I could be making a catastrophic error. Recommend a denial and I might bury an issue of national importance . . . . Petition after petition they come, an unending stream.”). With that starting point, Cash proceeds to examine the role of the law, of rules, of justice, and their intersection in that marble palace that Felix Frankfurter calls the temple of truth, one whose motto above the doors on which he pounded his fist reads “Equal Justice Under Law.”

Like so many other classic novels – and, make no mistake about it, this one deserves to be a classic, read in history and government and literature courses alike – Allegiance is a coming-of-age story. It is a love story. It is a story of betrayal, and disillusionment, and redemption.

Certainly, Cash struggles through a literal loss of innocence, and, like so many memorable protagonists who have gone before him, his innocent view of the world changes, too, prompting him to redefine concepts like taste and identity and, yes, allegiance. He is betrayed by friends, disillusioned by politics, and redeemed – perhaps – in a decision to point his life’s path after the war (tumultuous and catastrophic for the world and for Cash) in an unexpected direction.

But what makes Allegiance a transformative read is Roosevelt’s use of metaphor, subtly likening the Court and its jurisprudence in the first half of the twentieth century to a young person finding his way in the world and through a war, as Cash is. Roosevelt, in examining the history of the Japanese internment camps and laying bare the government’s advocacy and the Court’s decision-making in Korematsu v. United States, shines the spotlight on a Court that was deeply divided, deciding cases while navigating, yes, allegiances in one of the great Justice rivalries, one that became more deeply entrenched in each case.

And, of course, even as Justices Hugo Black and Felix Frankfurter fought bitter battles (as a family friend, a judge, comments to Cash before his clerkship interview, “there is a war at the Court if you care to look for it”) about the Court’s role in governance, the debate took on a life of its own, laying the groundwork for a jurisprudential theoretical battle that still divides judges and scholars, and, yes, Supreme Court Justices seventy years later. How should we interpret the Constitution? How should judicial review properly be exercised? How should politics guide decision-making – and should we acknowledge that they do? “Should we,” in the words of Roosevelt’s Frankfurter, “allow people to use our courts, our laws against us? To use the law as an instrument of war?” Should we follow the rules at all costs, even if our allegiance to the rule of law results in grave injustice?

Is the Supreme Court a temple of truth?

Through Cash’s experiences, the reader comes to ask those questions and seek – even find – deep answers, or at least more thoughtful questions.

What, for example, should a Justice, or a clerk, or an advocate do when he realizes that the facts upon which the Court is deciding a case are fabricated or massaged or altered just a bit to create a justiciable or, perhaps even more significant, landmark controversy? As the story unfolds and details the Korematsu litigation, Cash is faced with exactly that decision – one that certainly calls to mind Dale Carpenter’s account of Lawrence v. Texas or the secret briefs in the Pentagon Papers case – as he considers whether the Japanese internment camps and their residents’ renunciation of their U.S. citizenship rights, even if “legal,” are immoral and unjust because they derive from a patently untrue depiction of facts relating to their threat to America.

Which leads Cash to the next question, one Roosevelt teases out throughout the book. Should that concern us – lawyers, law clerks, judges, Justices? If the result – national security – is correct, do the means really matter? Especially if the means used are legal, passed into law by Congress, ordered by the President?

We ask which should trump, the law (or, as Roosevelt’s characters mostly refer to the law, “rules”) or justice.

And what if the law and the facts are unclear? Should we view that as an opportunity to clarify the law in a way consistent with our compassionately driven end goals, or should we try at all costs to read through the murkiness to come away with a correct reading, a true understanding, a binding definition of the law, no matter what its effect on the people it governs? As Cash reflects after a conversation with Justice Black about the humanity inherent to all legal controversies, “Cases are like stories . . . [T]he people and the happenings in a case are just a pool of muddy water where the law swims like an elusive fish, which glints as it turns and vanishes again. At Columbia [Law School] they taught us to seine that pond, to let the water slip away and hold only the bright fish in our minds.” And later, when faced with a case against a Japanese-American man who has refused to comply with an order to evacuate his home and go to the camps, “The lawyers have brought me a story, of a man who walked into the FBI office and told them he would not go. Through those murky waters I draw the seine of intellect. I am looking for the bright fish of the law, but I find nothing. I am lost; I am adrift in an endless sea, and there is no law, neither in the sun-dappled shallows nor the dark abyssal depths. There are only men.”

In this lies the heart of the controversy between Black, a proponent of total incorporation of the Bill of Rights into the Fourteenth Amendment, and Frankfurter, its staunchest opponent. At one point, Black comments to a confused Cash, “We have law to protect us from our best instincts as well as our worst.” But Frankfurter offers what would seem to be the opposite view. “You understand, Cash, how important it is for a judge to put aside his personal desires. Most of all his desire for approval from his crowd. A judge can have no loyalties except to abstractions, to truth and justice.”

No loyalties to people, then, litigants, those imprisoned for no reason other than their national heritage, those forced to salute a flag against their religious beliefs, those who have renunciated their citizenship under a false understanding and a false sense of assumptions.

And we are back to truth. And the temple where it resides. If it does. And the path to get there. Through law? Through justice? Through political approval? Through lies? Through love, for people, for an institution, for the rule of law?

Perhaps some of these many questions might have been easier to answer had Roosevelt made the history slightly more transparent, easier to grasp. He proves himself a serious student of early twentieth-century events, a quality that adds rigor and veritas to the novel but occasionally leaves the reader scrambling back a few pages to recall just who a character is or figure out just what is happening and where. It is because the author is so familiar with the time period and the historical and societal issues that the novel springs to life; it could be, however, that very familiarity prevents him from taking the reader through just a bit more slowly so that she can keep up.

Just like the reader, though, Cash must march forward, on those feet deemed insufficient for battle, with allies on whom he is not sure he can depend, and eventually against enemies he discovers along the way. Joining the Department of Justice after his clerkship, tapped to take on a key role in the Japanese internment camp controversy, he asks, “Who do we serve, the lawyers of Justice? The Department, the President, America, the law? . . . Law requires care . . . ; it grows where we nourish it and dies where we cut it.”

How do we care for the law? How do we nourish it? Can we count on one institution, one made up of nine flawed individuals, to have the answer? Is the Supreme Court a temple in which we pray, a setting for divine inspiration and truth? Or is it merely a marble building, with massive doors, with warriors inside, secretly fighting for each one’s individual definition of what’s right, what’s true, what’s just? Cash notes again and again, throughout the book, that “[T]he Court can bend the rules to get the right result.” And, “[i]t doesn’t matter what the law says, not if there’s something you want enough.” He asks, “And we enforce the law, no matter what it is?” and he struggles with the answer. “That’s what the Department of Justice does, yes.”

And then we think again, what about the people? The people, about whom Roosevelt’s Black says, “There’s real people in these cases. . . And you should never forget that. They like tapioca, and they can’t stand onions, and they wake in a dark night and don’t know where they are or why. You don’t want to stop seeing their faces.”

You don’t want to stop seeing their faces. And yet the law is hard to grasp, to see, to understand below the murky water. The fish dart to and fro, obscuring it in the moment it is most needed. To some, we can suppose, the murky water is an evil, clouding our clear view of the law. To others, perhaps, the role the murky water performs is justice, occluding rules that are slippery and scaly, allowing us to ignore the bright and shiny colors of the tempting fish and focus on what is truly right.

At the end of Allegiance, three years after he begins his clerkship, Cash calls up a memory of his first weeks at the Court. ”When I first met you, you said that [the Supreme Court] was a temple of truth.” Cash reminds Justice Frankfurter. And then, Frankfurter reminds him of an even greater truth – a truth about the fiction of a Court above politicking, above vote-trading, above rule-breaking. “We are at war, and in time of war there is only one rule. Form your battalion and fight.”

On Thursday, the justices met for their May 23 conference; John Elwood's Relist Watch compiles the petitions that were relisted for this conference.

Major Cases

Department of Commerce v. New York(1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.

Lamone v. BenisekIn case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Recent Decisions

Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.

Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.

Current Relists

Conference of May 23, 2019

al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.

Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.

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On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.